Death Penalty in India: The Rarest of Rare Doctrine

India keeps the death penalty, but courts may impose it only in the "rarest of rare" cases, where life imprisonment is unquestionably foreclosed as an option after weighing aggravating and mitigating circumstances. This test comes from Bachan Singh v. State of Punjab (1980), and today it operates through the Bharatiya Nyaya Sanhita, 2023 (BNS) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which require special reasons for a death sentence, High Court confirmation and a structured mercy petition process.

This explainer is for B.A. LL.B. and LL.B. students preparing Criminal Law and Criminal Procedure, and for citizens who read about a death sentence in the newspaper and want to know what actually happens next. If you are a second year student in Nagercoil facing a fifteen mark question on capital punishment, the structure below also works as your answer plan.

Which provisions allow a death sentence today?

Section 4 of the BNS lists death as the first of the punishments the Sanhita recognises. Individual offences then say whether death is available. The most common one in court is murder:

• Section 103(1) BNS (old Section 302 IPC): whoever commits murder "shall be punished with death or imprisonment for life", and is also liable to fine.
• Section 103(2) BNS: murder by a group of five or more acting in concert on grounds such as race, caste or community, sex, place of birth, language or personal belief. Each member faces death or life imprisonment, with fine.
• Section 104 BNS: murder by a person already serving life imprisonment, punishable with death or imprisonment for the remainder of natural life.

Notice the words "death or imprisonment for life". The statute gives the judge a choice. The rarest of rare doctrine is the rule that governs that choice. Mandatory death sentences do not fit this scheme: in Mithu v. State of Punjab (1983), the Supreme Court struck down the mandatory death penalty in old Section 303 IPC.

What did Bachan Singh actually decide?

A five judge bench decided Bachan Singh v. State of Punjab on 9 May 1980. By a 4:1 majority, it upheld the constitutional validity of the death penalty for murder, but confined it to the rarest of rare cases, where the alternative of life imprisonment is unquestionably foreclosed. Justice P.N. Bhagwati dissented, finding the system arbitrary.

Three ideas from the majority matter most in exams:

1. Life imprisonment is the rule, death the exception.
2. Look at the crime and the criminal. The court must weigh aggravating circumstances against mitigating ones, including the accused's age, background and chance of reform.
3. The sentencing hearing is a safeguard. The majority treated a separate hearing on sentence as a valuable protection for the convict.

How did Machhi Singh shape the test?

In Machhi Singh v. State of Punjab (20 July 1983), a three judge bench turned Bachan Singh into two practical questions. Is there something uncommon about the crime that makes life imprisonment inadequate? And even after giving the maximum weight to mitigating circumstances, is death the only option? The Court then described five categories that may call for death:

• Manner of commission: extremely brutal, grotesque or dastardly killings.
• Motive: total depravity, such as a contract killing for money.
• Anti-social or socially abhorrent nature: for example dowry deaths or killings meant to terrorise a community.
• Magnitude: the killing of all or almost all members of a family.
• Personality of the victim: an innocent child, a helpless woman or an elderly person.

A good answer points out the tension. Machhi Singh's categories describe the crime, while Bachan Singh insisted that the criminal must also be considered. Examiners reward students who notice this.

What does the BNSS require at trial and on confirmation?

• Hearing on sentence, Section 258(2) BNSS (old Section 235(2) CrPC): after conviction, the judge "shall" hear the accused on the question of sentence before passing it.
• Special reasons, Section 393(3) BNSS (old Section 354(3) CrPC): where the offence carries death or life imprisonment, the judgment must give reasons for the sentence and, for death, "the special reasons for such sentence".
• Confirmation, Section 407 BNSS: when a Court of Session passes a death sentence, the proceedings go to the High Court at once, and the sentence cannot be executed unless the High Court confirms it. For a Sessions Court in Nagercoil or Madurai, that is the Madras High Court.
• High Court's powers, Section 409 BNSS: it may confirm, pass another lawful sentence, annul the conviction and convict for another offence, order a new trial, or acquit. It cannot confirm until the appeal period has run out or any appeal is decided.
• Pregnancy, Section 456 BNSS: if a woman sentenced to death is found pregnant, the High Court shall commute the sentence to life imprisonment.

How does a mercy petition work under Section 472 BNSS?

Section 472 BNSS puts the mercy petition process into the statute for the first time. In outline:

1. The convict, a legal heir or a relative files within 30 days of the jail Superintendent informing the convict that the Supreme Court has dismissed the appeal, review or special leave petition, or that the High Court has confirmed the sentence and the time to approach the Supreme Court has expired.
2. The petition goes first to the Governor under Article 161, and then to the President under Article 72 within 60 days of its rejection or disposal.
3. The Central Government seeks the State's comments and sends its recommendation to the President within 60 days of receiving them and the jail records.
4. The President's order reaches the State Home Department and the jail Superintendent within 48 hours.
5. Section 472(7) says no appeal lies in any court against the order of the President or the Governor.

Read that last clause together with Shatrughan Chauhan v. Union of India (21 January 2014). A three judge bench held that unexplained, inordinate delay in deciding a mercy petition, and mental illness of the convict, are supervening circumstances that can justify commuting death to life. The Court applied this in Navneet Kaur v. State of NCT of Delhi (31 March 2014) to commute Devender Pal Singh Bhullar's sentence.

Where does the law stand now on mitigation?

The recent focus is on the information a judge has before choosing death. In Manoj v. State of Madhya Pradesh (judgment of 20 May 2022), the Supreme Court, while hearing the appeals, called for reports from the probation officer, the jail authorities and a trained psychiatrist and psychologist before hearing arguments on sentence. On 19 September 2022, in a suo motu case titled In Re: Framing Guidelines Regarding Potential Mitigating Circumstances, a three judge bench found conflicting three judge decisions on whether same day sentencing is valid, and referred the question of a real and meaningful sentencing hearing to a bench of five judges. We could not confirm whether that larger bench has ruled, so check the Supreme Court's case status before your exam.

How should you write about this in an exam?

1. Open with the statutory choice in Section 103(1) BNS and the special reasons rule in Section 393(3) BNSS.
2. State the Bachan Singh test in one sentence, with the 4:1 majority and the Bhagwati dissent.
3. Add Machhi Singh's two questions and five categories, then point out the crime versus criminal tension.
4. Cover procedure: Section 258(2) hearing, Section 407 confirmation, Section 472 mercy petition.
5. Close with Shatrughan Chauhan, Manoj and the 2022 reference.

Students who want to see how sentencing and mercy questions reach real prisoners can volunteer with the college legal aid clinic.

Sources

• Bachan Singh v. State of Punjab (9 May 1980): five judge bench judgment on the validity of the death penalty.
• Machhi Singh v. State of Punjab (20 July 1983): the two questions and five categories.
• In Re: Framing Guidelines Regarding Potential Mitigating Circumstances (19 September 2022): reference on sentencing hearings, summarising Manoj.
• Manoj v. State of Madhya Pradesh (20 May 2022): Supreme Court judgment on gathering mitigation material before sentencing.
• BNSS Section 472 (AdvocateKhoj): text of the mercy petition provision.
• BNSS Section 407 (AdvocateKhoj): submission of death sentences for High Court confirmation.
• Supreme Court, Navneet Kaur v. State of NCT of Delhi (31 March 2014): applies Shatrughan Chauhan on delay and mental illness.